The appellants Faheem Arshud and. Ramzan alias Pappi have preferred the instant Appeal No. 140/L/2003 assailing their convictions under Section 11 of the Offence of Zine 11 ( EFIA)Miliellt of I- Wood) Ordinance 1979 and sentenced therein to undergo two years R.I. each with fine of Rs. 4000/- each and in default to further undergo three months. S.I. each with benefit of Section 382-B Cr.P.C.
Infact, three persons namely Jan Muhammad alias Jani and two appellants i.e. Faheem Arshad and Ramzan alias Pappi were put up for trial in the Court of Ch. Humayun Imtiaz, Additional Sessions Judge, Kahror Pacca, District Lodhran. The learned trial Judge, on conclusion of the, trial, convicted the appellants under Section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and awarded them sentence as noted above. Their co-accused Jan Muhammad alias Jani had since absconded, therefore, perpetual warrants of his arrest were issued. It is stated at bar by the learned counsel for the appellants that he has not been arrested so far.
2. Mst. Azra Bibi, according to her father Haq Nawaz her age was twelve years. On the night in between 15/16.9.1999, the complainant alongwith Mst. Azra Bibi was asleep in his house. At about 4.00 a.m. when he woke up, he saw that his daughter Mst. Azra Bibi was missing. He laid suspicion on Muhammad Jan alias Jani because he was on visiting terms with his family. It was suspected that he might have abducted her. He left for search of his missing daughter. On his way, he met Muhammad Irshad (PW.3) and Muhammad Iqbal (PW.4), who informed him that they had been seen Mst. Azra Bibi in the company of Jan Muhammad alias Jani as well as Faheem Arshad and Ramzan alias Pappi appellants. All the four were standing at bus stop and waiting for bus destined to Sahiwal. The complainant approached relations of the accused persons, who promised to return his daughter but after a few days refused to do the same. He was, therefore, constrained to move an application before the DSP on the basis of which the case FIR No. 380/99 was registered with Police Station City Kahror Pacca, District Lodhran under Section 363 PPC against the appellants and their companion Jan Muhammad alias Jani.
3. During course of investigation, Jan Muhammad alias Jani was found to be guilty and was sent up to face trial but against both the appellants no evidence worth challaning them to Court could be collected. They were, therefore, not sent up to face trial in the Court.
4. Mst. Azra Bibi was examined as PW.1. During her examination-in-chief, she alleged that both the appellants committed zina-bil-jabr with her. She, in substance, supported the contents of the FIR, which was registered at the instance of her father Haq Nawaz. After her statement, application for summoning the appellants was moved by the prosecution, on which they were summoned and arrayed as accused:
5. The learned trial Judge framed charge against all the three accused under Sections 11 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. They pleaded not guilty and claimed trial. The trial commenced where prosecution examined eleven witnesses.
6. After Mst. Azra the next important witnesses are Muhammad -Irshad (PW.3) and Muhammad Iqbal (PW.4). Both the witnesses made statements in line with each other and stated that they saw that Faheem Arshad, Ramzan alias' Pappi, Mst. Azra Bibi and Jan Muhammad alias Jani were boarding a bus proceeding towards Sahiwal. Mst. Azra Bibi was examined again as PW.5 after the appellants have been summoned to face trial. According to her, she left her house for easement.
There she met with Jan Muhammad alias Jani, Faheem Arshad and Ramzan alias Pappi. They browbeat her and thereafter abducted her. On hue and cry various people were attracted to the spot. All the accused persons committed zina-bil-jabr with her and she was removed from place to place. Jan Muhammad alias Jani also obtained her thumb impression and informed that he has got his Nikah solemnized with her, therefore, she should accept him as her husband. On refusal, she was beaten, however, she subsequently conceded under his threat. She was left by Jan Muhammad alias Jani is Kahroor Pacca from where she was picked up by tlie.police and criminal proceedings were initiated.
She was subjected to quite lengthy cross-examination wherein she admitted that she was produced before a Magistrate and she had made a statement before him. She also stated that her mother had died 11/12 years ago and her father had married second wife. She was confronted with her previous statement under Section 161 Cr.P.C. where she had implicated only one person i.e. Jan Muhammad alias Jani. She did not even mention the appellants as accused in her statement.
7. The complainant was examined as PW.6, who testified the application made by him before the police. He reiterated the version already detailed by him in the application.
8. Dr. Mahmooda Naseem, who examined Mst. Azra Bibi was examined as witness. She recorded the age of Mst. Azra Bibi as in between 14 to 16 years. No mark of injury was found on her body. Various clinical symptoms indicate that she was used to sexual intercourse.
9. On close of prosecution case, the appellants were examined under Section 342 Cr.P.C. Ramzan gave his age as 28 years whereas Faheem Arshad's age was recorded as 19 years. They denied the allegations against them and pleaded that they have been falsely implicated being friends and companions of Jan Muhammad alias Jani.
10. The learned trial Judge on conclusion of the trial convicted the appellants under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and awarded them sentence as detailed above. The appellants also produced defence witnesses in order to show they did not have any criminal antecedent and also that Mst. Azra Bibi contracted Nikah with Jan Muhammad alias Jani on 4.9.1999. They also got proved the registration of the Nikah in between Azra Bibi and Jan Muhammad. The main defence plea urged by the appellants during course of cross-examination to (as well as by cross-examining the prosecution witnesses is mainly to the effect that Mst. Azra Bibi and Jan Muhammad alias Jani had been got married of their own:free will. The father of the victim was annoyed on account of this marriage, therefore, a false case was fabricated against the appellants.
11. The learned counsel for the appellants, in support of appeal, has mainly argued that the very narration of the prosecution story and its facts abundantly show that Mst. Azra Bibi left the house of her father on her own accord. Her real mother had died and her father had contracted a second marriage. She would obviously be. annoyed on account of pernicious behaviour of her step mother and thus might have been compelled to leave her house. Nikah in between Jan Muhammad alias Jani and Mst. Azra bibi was duly registered. There is absolutely no evidence nor any circumstance to show that she was forcibly abducted or any threat or force in this behalf was employed on her. It is argued that her statement was recorded under-Section 164 Cr.P.C. before a Magistrate. At the time of recording statement she was alone and the Magistrate after satisfying himself that the statement had been made by her voluntarily, proceeded to record the same under Section 164 Cr.P.C. In that statement Mst. Azra Bibi did not implicate the appellants at all. She named only one person as accused and he was Jan Muhammad alias .Jani. The statement had been made at the earliest, therefore, the omission of the appellants from that statement is significant and prove that they were not participants in the commission of the alleged offence. Not only she gave statement under Section 164. Cr.P.C. but also made a sworn statement through affidavit. She did not make any allegation against the appellants. She contracted marriage with Jan, Muhammad alias Jam although she has retracted from her consent thereto but.the fact remains that she would have appeared before number of persons. She remained with Jan Muhammad alias Jani for quite some time but did not raise any objection. Throughout the period, she did not offer any resistence.
Therefore, whatever took place in between her and Jan Muhammad alias Jani appears to be done with free will.
12.As regards age of Mst. Azra Bibi it is vigorously argued that the complainant had intentionally given her age as 12-years. In fact she was major. Even. according to the medical examination she had attained puberty and therefore, within the meanings of Section 2 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 she would be deemed to be an adult. During her examination as witness in Court she gave her aged as 17 years. It would mean that at the time of alleged occurrence she would be about 16-years of age. Even the doctor gave her age in between 14 to 16 years.
13.If an adult girl slips out of the house for untoward circumstance and thereafter contracts marriage with a man of her own choice then there arises no question of abducting or kidnapping liar. Even the complainant himself admitted in the FIR that Jan Muhammad alias Jani was on visiting terms with his family. The possibility, therefore, cannot be tiled out that Mst. Azra Bibi and Jan Muhammad alias Jani developed some liaison in between themselves, and thereafter in accomplishment of. the relation they got married. The allegation against the appellants is that they associated themselves with Jan Muhammad alias Jani and as such acting as accomplice, they committed offence under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Even otherwise Mst. Azra Bibi has been making different statements. In the first statement as stated above, she did not even name the appellants as accused in her statement in Court after the appellants were summoned she cane up with direct institution against the appellants for having committed rape on her. This is an obvious departure from her previous statement. The same is not a mere discrepancy rather the same has been done under-instructions and as such the appellants have been involved maliciously. As quite . evident from the facts and circumstances of the case that Mst. Azra Bibi and Jan Muhammad alias Jani had intimacy in between themselves and the occurrence took place in between night her wilful elopement with Jan Muhammad alias Jani cannot be ruled out. Had she been abducted forcibly, she could have raised alarm and as such the inmates of the he Ise would have resisted her abduction. No resistance or any obstruction was made by any of the inmates. This belies Mst Azra Bibi's version that she was forcibly abducted,
14. The appellants were found to be innocent during the course of investigation. From the beginning the appellants pleaded their innocence and successfully proved the same before the investigating-agency. Although opinion of police is not binding on the Court yet the same furnishes a circumstance in favour of the appellants to get them exonerated from the alleged offence. The prosecution is under legal obligation to prove the case beyond doubt. In the instant case, the prosecution has not been able to discharge its onus as required by the law therefore, it will be unsafe to sustain the conviction of the appellants.
The appeal of the appellants is, therefore, allowed and their sentence is set aside. They are present on bail in Court. They and their sureties are discharged from their respective bail bonds.